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May/16

Text of Second Circuit Nominative Fair Use Case (IISSCC v SU)


Introducing the 2d Circuit Nominative Fair Use Test:

1. Whether plaintiff’s mark is necessary to describe both the plaintiff’s and defendant’s products, “that is, whether the product or service is not readily identifiable without use of the mark;

2. whether the defendant uses only so much of the plaintiff’s mark as is necessary to identify the product or service; and

3. whether the defendant did anything that would, in conjunction with the mark, suggest sponsorship or endorsement by the plaintiff holder, that is, whether the defendant’s conduct or language reflects the true or accurate relationship between plaintiff’s and defendant’s products or services.

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